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PETITIONER: TILOKCHAND MOTICHAND & ORS.

       Vs.

RESPONDENT: H.B. MUNSHI & ANR.

DATE OF JUDGMENT: 22/11/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SIKRI, S.M. BACHAWAT, R.S. MITTER, G.K. HEGDE, K.S.

CITATION:  1970 AIR  898  CITATOR INFO :  D          1973 SC1041  (16)  F          1974 SC 259  (9)  R          1974 SC 532  (11)  F          1974 SC2077  (11)  R          1975 SC 511  (10)  RF         1975 SC 538  (18)  R          1975 SC 813  (13,14,16,17)  F          1979 SC1328  (10)  RF         1981 SC1082  (15)  R          1982 SC 101  (28)  R          1988 SC1531  (126)  F          1990 SC 313  (26)  RF         1990 SC 415  (20)  RF         1990 SC 772  (8,32)  D          1991 SC1676  (72)

ACT: Constitution  of India, 1950,  Art.  32--Laches--Fundamental right-Effect on. Petition under Art. 226--Contention raised that provision of law     is    ultra   vires   as    violating    fundamental rights--Contention not considered but petition dismissed  in limine-Order  of High Court if res judicata, in relation  to petition under Art. 32.

HEADNOTE: The sales tax authorities directed that the sum realised  as sales  tax by the petitioners from their customers and  paid over  to the State should be refunded to the petitioners  on condition  that  the petitioners passed on  the  amounts  to their  customers.  Since the petitioners did not fulfil  the condition, the sales tax officer ’forfeited the sum under s. 21(4)  of .the Bombay Sales Tax Act, 1953,  by  order  dated March  17, 1958. On March 28, the petitioners filed  a  writ petition  in the High Court and contended that s. 21(4)  was ultra  rites  the powers of the State  Legislature  and  was violative of Arts. 19(1)(f) and 265 of the Constitution  and hence, they were not liable to repay the amount.  The single Judge  dismissed  the  petition  on  the  ground  that   the

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petitioners  defrauded  their  customers  and  so  were  not entitled  to  any relief even if there was a  violation   of fundamental  rights.  The appellate bench of the High  Court dismissed  the  appeal  on  the ground  that  it  would  not interfere with the discretionary order of the single  Judge. On December 24, 1958, the Collector attached the  properties of  the petitioners for recovering the amount as arrears  of land  revenue  and  the  petitioners  paid  the  amount   in instalments  between  August  1959  and  August  1960.    On September  29, 1967 this Court in Kantilal Babual   v.  H.C. Panel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of  Bombay Sales Tax Act, 1946, corresponding to s. 2’1(4) of the 1953- Act,  on the ground that it was violative of Art.   19(1)(f) inasmuch  as   the  power  conferred  by  the  section   was unguided,  uncanalised  and uncontrolled and so  was  not  a reasonable  restriction on the fundamental right  guaranteed under  the Article.  On the assumption that s. 21(4) of  the 1953-Act  is  also  liable to be struck  down  on  the  same ground,   on February 9, 1968, the petitioners flied a  writ petition under Art. 32 claiming a refund of the amount.  The petitioners  contended   that  they did not  know  that  the section  was ultra vires on the particular ground  on  which this Court struck it down, that they paid the amounts  under coercion  or  mistake, that the mistake  was  discovered  on September 29, 1967 (the date of the judgment of this  Court) and that they were entitled to the refund under s. 72 of the Indian Contract Act, 1872.     On the questions: (1) Whether the petition is liable  to be  dismissed on the ground of Inches; and (2)  Whether  the petition is barred by  res judicata in view of the  decision of the High Court.         HELD: (Per Hidayatullah, C.J., Bachawat and  Mitter, JJ.):  (1) The petition must be dismissed on the  ground  of Inches.         825     Per  Hidayatullah  C.J.: Article 32 gives the  right  to move  this Court by appropriate proceedings for  enforcement of  fundamental  rights  and  the  State  cannot  place  any hindrance  in the way of an aggrieved person. But  once  the matter  has  reached  this Court, the extent  or  manner  of interference  is for this Court to decide.  This  Court  has put  itself  in restraint in the matter of  petitions  under Art. 32.  For example, this Court refrains from acting under the  Article if the party had already moved the  High  Court under  Art.  226  and if the High Court  had  exercised  its parallel jurisdiction.  In such a case, this Court would not allow  fresh  proceedings to be started under  Art.  32  but would insist on the decision of the High Court being brought before  it on appeal.  Similarly, in inquiring into  belated and stale claims, this Court should take note of evidence of neglect  of the petitioner’s own rights. for a long time  or of  the rights of innocent parties which might have  emerged by  reason of the delay. The party aggrieved must  therefore move  this Court at the earliest possible time  and  explain satisfactorily  all semblance of delay.  It is not  possible for  this  Court  to lay down any specific   period  as  the ultimate  limit  of  action and each case will  have  to  be considered  on  its own facts. A petition under Art.  32  is neither  a suit nor an application to which  the  Limitation Act   applies.   Further,  putting  curbs  in  the  way   of enforcement  of fundamental rights through such  legislative action might be questioned under Art. 13(2). for, if a short period  of limitation is prescribed  the  fundamental  right might  be  frustrated.   Therefore,   this  Court   has   to exercise  its discretion from case to case, and where  there

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is  appearance of an avoidable delay and this delay  affects the merits of the claim, this Court will consider it, and in a  proper  case, hold the party disentitled  to  invoke  its extraordinary  jurisdiction.  [830C,  DE.  G--H;  831  A--B. C--E; 832 A--E]     In   the   present   case,   the   petitioners     moved unsuccessfully  the   High Court for relief on  the.  ground that  the recovery from them was unconstitutional,  but  did not  come  up  in appeal to this Court.  There  is  thus  no question of any mistake of law.  Having set the machinery of law  in  motion they cannot abandon it to  resume  it  after a  .number of years because another person got  the  statute declared   unconstitutional.   They should  have  known  the exact  ground  of  unconstitutionality since  every  one  is presumed  to  know the law; and pursued the ground  in  this Court.  Not  having done so, and having  abandoned  his  own litigation years ago. this Court will not apply the  analogy of the Article in the  Limitation Act in cases of mistake of law and give him relief. [832 F--H; 833  A--B, C--E]     Per  Bachawat,  J.: The normal remedy  for  recovery  of money paid to the State under coercion or mistake of law  is by  suit.  The right to move this Court for  enforcement  of fundamental  rights is guaranteed by Art. 32, and no  period of  limitation is prescribed for such a petition.  The  writ issues  as a matter of course if a breach of a  ’fundamental right    established, but this does not mean that in  giving relief  under the Article this Court may ignore all laws  of procedure.   The extraordinary remedies under Arts.  32  and 226  of  the  Constitution  are not  intended  to  enable  a claimant to recover monies the recovery of which by suit  is barred by limitation.  In the absence any roles of procedure under   Art. 145(1)(c) this Court may adopt  any  reasonable rule.  For  example. this Court will not allow a  petitioner to  move this Court under Art. 32 on a  petition  containing misleading and inaccurate statements. Similarly, the general principles of res judicata  are  applied  where   applicable on grounds of public policy.  Therefore, where the remedy in a writ application under Art. 32 or Art. 226 corresponds  to a  ’remedy  in  an ordinary suit and the  latter  remedy  is subject  to  the bar of a statute of limitation,  the  Court imposes on analogy the  same limitation on  the  summary 826 remedy  in  the writ jurisdiction even though  there  is  no express  statutory bar of limitation, on grounds  of  public policy  and on the principle that the laws aid the  vigilant and not those who slumber.  [842 A--F;  843 A--F] In     the present case, the petitioners were not  labouring under   any  mistake  of law when they  made  the  payments, because,  in  their writ petition in the  High  Court,  they contended  that the order was invalid and that s.  21(4)  of the  Bombay  Sales  Tax  Act, 1953,  was  ultra  vires   and unconstitutional  although  they did not know   the  precise ground  upon  which this Court subsequently struck  down  s. 12A(4)  of  the  1946-ACt. Therefore,  when  they  made  the payments in 1959 and 1960 they were made under coercion  and not  under a mistake of law in thinking that the  money  was due.   Hence the petitioners could not claim any  relief  on the  ground  of mistake.  They could rely on the  ground  of coercion but a suit for the recovery of money on the  ground of  coercion  instituted in February 1968, would  have  been barred  by limitation.  A suit for recovery of money on  the ground of coercion instituted after January 1, 1964 would be governed  by Art. 24 of the Limitation Act, 1963,   and  the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid.  The petitioners  could

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not obtain an extension of the period under s. 30(a) of  the Limitation  Act,  1963,  as Art. 62 of the  Limitation  Act, 1908, which governs a suit for recovery of tax or other levy illegally   collected,   prescribed  the  same   period   of limitation. [840 F--H; 841 A---C]     Shiva Prasad Singh v. Srish Chandra Nandi,  (1949)  L.R. 76  I.A.  244,  254, Sales Tax Officer  v.  Mukundlal  Saraf [1959]   S.C.R.  1350, 1361, 1362, A. Venkata Subba  Rao  v. State of Andhra Pradesh [1965] 2 S.C.R. 577, 612--620, State of Madhya Pradesh v. Bhailal Bhai & Ors. [1964] 6 S.C.R. 261 274,  Daryao v. State of U.P. [1962] 1 S.C.R.  574,  Sobhraj Odharmal  v. State of Ralasthan, [1963] Supp. 1  S.C.R.  99, 111    and   Her   Highness   Ruckmaboye   v.     Lulloobhoy Mottickchund,  (185152) 5 M.I.A. 234, 251, referred to.-     Per  Mitter,  J.: The Limitation Act does not  in  terms apply  to  proceedings against the State under  Art.  32  in respect  of  violation  of  fundamental  rights.   A  person complaining  of  such infraction has. one of  three  courses open  to him.  He can file a suit, invoke Art. 226  or  Art. 32Suits  are governed by the Limitation Act.  In the  matter of  the  issue of a writ under Art. 226  also,  courts  have refused  to  give relief in cases of  long  or  unreasonable delay,  although the Limitation Act does not apply, and  the maximum period fixed by  the Legislature  for filing a  suit is  ordinarily  taken to be a reasonable standard  by  which delay in seeking the remedy under Art. 226 can be  measured. There  is  no reason for applying a different  test  when  a party  comes  to this Court under Art. 32. There  is  public policy  behind all statutes of limitation and a claim  based on  the  infraction of fundamental rights ought  not  to  be entertained   if  made  beyond  the  period  fixed  by   the Limitation  Act for the enforcement of the right by  way  of suit,  that is, although the Limitation Act does not  apply, the period fixed by it should be taken to be a true  measure of the time within which a person can be allowed to raise  a plea successfully under Art. 32.  [853 C--H; 854 A--B]     The  petitioners in this case had not made a mistake  in thinking that the money paid was due when in fact it was not due.    They  not only opposed the claim of  the  sales  tax authorities but filed a writ petition contending that  there was  a violation of Art. 19(1)(f).  They did not accept  the decision of the single Judge  but  filed  an appeal  raising the same contention.  They complained about the violation of their  fundamental  rights, the illegality of the  order  of forfeiture and the unreason- 827 able  restriction  on their fundamental  rights  under  Art. 19(1)(f).   They protested against the order  of  forfeiture not  only  out  of court  but in court  and  only  paid  the amounts  after the issue of legal process.  They were  never influenced  by  a  mistake  of  law  and  never  ’failed  to ’appreciate  the correct position in law.  But the  payments were  made under coercion.  The period of limitation  for  a suit against Government to recover money paid under  protest is  governed either by Art. 16 or Art. 62 of the  Limitation Act,  1908 that is one year or three years.  But taking  the most  favourable view that the period of six years fixed  by Art.  120 of Limitation Act, 1908, would apply, that  period would  have expired in 1966.  The position is not  different even  if the Limitation Act, 1963 is applied.  A  claim  for money  paid under coercion would be covered by Art.  113  of the  Limitation Act, 1963, giving a period of 3  years  from January  1, 1964 the date of commencement of  the  1963-Act. Under  s. 30(a) of the Limitation Act, 1963, the  period  of limitation for a suit which was formerly covered by Art. 120

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of  the  Act of 1908; would be covered by Art.  113  of  the 1963-Act.   Therefore,  the suit in the present  case  would have  to  be filed by January 1, 1967.  As  the  petitioners came to this Court in February 1968 long after the date when they  could  have properly filed a  suit,  the   application under  Art.  32 must  be  rejected. [851 H; 852 A---D,  G-H; 853 A--B; 854- B--H;, 855 A-B]     Kantilal  Babulal & Bros. v.H.C. Patel 2.1  S.T,C.  174, Sri  Sri  Shiba Prasad Singh, deceased, now  represented  by Kali  Prasad Singha v. Maharaja Srish Chandra Nandi 76  I.A. 244,  Sales  Tax Officer v.  Kanhaiya Lal  Mukundlal  Saraf, [1959] S.C.R. 1350 at  1363,  Sales Tax Officer, Pilibhit v. Budh  Prakash jai  Prakash, [1955] 1 S.C.R. 243,   State  o/ Madhya  Pradesh v. Bhailal Bhai  [1964] 6 S.C.R. 261,  State of Kerala v. Aluminum Industries Ltd. 16 S.T.C. 689, and  A. V.  Subbarao v. The State of Andhra Pradesh [1965] 2  S.C.R. 577, referred to.     Per Sikri and Hegde, JJ. (dissenting):  The petition has to be allowed and the petitioners must be granted the relief prayed for.     Per  Sikri,  J.:  Article  32(2)  of  the   Constitution confers  a  judicial  power  on this  Court,  and  like  all judicial powers, unless there is an express provision to the contrary,   it   must  be  exercised  in   accordance   with fundamental principles of administration of justice, and one such  fundamental principle is that stale claims should  not be given effect  to.   [833  F--G]     The Limitation Act does not directly apply to a petition under  Art. 32 and to invoke the analogy of  the  Limitation Act  is  not appropriate when dealing with  petitions  under Art.  32.   If a claim is barred under the  Limitation  Act, prima  facie  it is a stale claim but even if it is  not  so barred,  it may not’ be entertained by this Court if on  the facts  of the case there is unreasonable delay.  To issue  a writ,   direction  or  order  in  the  nature  of   mandamus certiorari  or  prohibition after a delay of 12 years  or  6 years    would,   except   when   there   are    exceptional circumstances,  be strange.  It is difficult to lay  down  a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim  unless the   delay  is  explained.   The  time  spent   in   making representations to higher authorities may be taken as a good explanation  for  any  delay.  Such  a  practice  would  not destroy  the guarantee under Art. 32, because,  the  article nowhere  lays down that a petition, however late, should  be entertained. [833 G; 835 C-H]     In  the present case, the petitioners were  mistaken  in thinking that the money was liable to be paid under a  valid law  and   hence   under  s. 72 of  the  Contract  Act,  the petitioners  would be entitled to the relief  claimed.   The grounds  urged  before  the High Court show  that  it  never struck   the  petitioners  that  the  provision   could   be challenged on the ground ulti- 828 mately accepted by this Court.  If the petitioners  had  not moved   the  High Court but had paid on demand   they  would have  been entitled to maintain the petition in this  Court. The  position could not be worse became they exercised their right under  Art. 226.  When a petitioner approaches a  High Court and fails, it could not be said that payments made  by him thereafter were not under a mistake of law, even if  the point  on  which  this Court ultimately  strikes   down  the provision  under  which  the payments were  made  was  never raised  in the High Court. The petitioners discovered,  like all  assessees their mistake when this Court struck down  s.

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12A(4) of the 1946-Act  and they came to this Court within 6 months  of  that date and hence there was  no  delay.   [837 G--H; 839 B---E]     Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields  Ltd. v. Janapada Sabha, Chindwara,  A.I.R.  1964 S.C.  1013, 1018, Sales Tax Officer v.  Kanhaiyalal,  [1959] S.C.R.  1350 and Kantilal Babulal v. H.C. Patel,  Sales  Tax Officer, 21 S.T.C. 174, referred to.     Per Hegde, J.: In view of the decision  of  this   Court in   Kantilal  Babulal  v.H.C. Patel, 21  S.T.C.  174  which struck  down  s.  12A(4)  or  the  1946-Act,  the   impugned collection  under s. 21(4) of the  1953-Act was without  the authority of law and consequently the exaction infringed the fundamental  right of the petitioners under  Art.  19(1)(f). Hence  the petitioners have a fundamental right to  approach this’  Court  under Art. 32 for relief and this Court has  a duty to afford them the appropriate relief.  Since the right given  to  the  petitioners  under  Art.  32  is  itself   a fundamental right and does not  depend  on the discretionary powers  of  this Court, as in 1be case of Art.  226,  it  is inappropriate  to equate the duty imposed on this  Court  to the  powers  of Chancery Court in England or  the  equitable jurisdiction  of Courts in the United States. The fact  that the  petitioners  have  no  equity in  their  favour  is  an irrelevant circumstance in deciding the nature of the  right available  to an aggrieved party under Art. 32.  This  Court is   charged   by   the  Constitution   with   the   special responsibility  of protecting and enforcing the  fundamental rights, and hence leaches on the part of an aggrieved  party cannot deprive him of his right to get relief under Art. 32. In  fact, law reports do not show a single instance of  this Court  refusing to grant relief on the ground of delay.   If this  Court could refuse relief on the ground of delay,  the power  of the Court under Art. 32 would be  a  discretionary power  and the right would cease to be a fundamental  right. The provisions contained in the Limitation Act do not  apply to  proceedings  under  Arts.  226  and  32  and  if   these provisions    of  the   Limitation   Act   are  brought   in indirectly   to  control  the  remedies  conferred  by   the ConstitUtion,  it would be a case of  Parliament  indirectly abridging  the  fundamental  rights  which  this  Court,  in Golaknath’s case, [1967] 2 S.C.R. 762, held that  Parliament cannot  do.  The ’fear. that forgotten claims  and discarded rights against Government may be sought to be enforced after the  lapse of a number of years if fundamental  rights   are held   to  be  enforceable without any  time  limit,  is  an exaggerated  one,  for,  after all, a  petitioner  can  only enforce an existing right.  [856 D. F--H; 857 A, B, D,  G-H; 858 A, D--E, F--H; 859 H]     In this case the petitioners have an existing right even if  their  remedy under the ordinary law  is  barred.   This Court struck down s. 12A(4) of the 1946-Act on a ground  not put  forward by the petitioners in the High Court but  on  a wholly different ground.  A mere impression of a party  that a provision of law may be ultra vires cannot be  equated  to knowledge that the provision is invalid. and the fact, that, after  a  futile attempt to get the  provision  in  question declared  invalid  the petitioners gave up their  fight  and submitted to the law which was apparently valid is no  proof of  the fact that they knew that the provision  in  question was 829 invalid.   There is no reason for rejecting the plea of  the petitioners that they became aware of the invalidity of  the provision   only  after  the  decision  of  this  Court   in

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Kantilal’s case, and since the petition was filed very  soon thereafter,  the petitioners were entitled to  relief.  [860 C--G] State of M.P.v. Bhailal Bhai, [1964] 6 S.C.R. 261,  referred to. (2)  (By  Full  Court): The petition is not  barred  by  res judicata. Per  Hidayatullah,  C.J. Where the order of the  High  Court under  Art.  22% is not a speaking order or the  matter  has been disposed of on some ground other than on merits, at the threshold,   this  Courtmay entertain the application  under Art. 32.  [831 B] Daryao v. State of U.P. [1962] 1 S.C.R. 574, explained. Per  Sikri, Bachawat and Mitter, JJ.: When a petition  under Art.  226 is dismissed not on the merits but because of  the laches  on  the party applying for ,the writ or  because  an alternative  remedy was available to him, such dismissal  is not a bar to a subsequent petition under Art. 32, except  in cases  when the facts found by the High  Court  might   them selves be relevant under Art. 32. [833 E--F; 839  F--G;  855 C--D,F-G] Daryao’s  case, [1962] 1 S.C.R. 574 and Joseph v. State   of Kerala, A.I.R. 1965 S.C. 1514, referred  to.     Per Hegde. J.: It is only when the right claimed  by the petitioner in his petition under Art. 32 had been claimed in the  High  Court under Art. 226 and negatived  by  the  High Court  and  that  decision had become final as  it  was  not appealed  against, that the petitioner would not be able  to agitate  the right over again in this Court under  Art.  32. [856 B--C] Daryao’s case, [1962] 1 S.C.R. 574, explained.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 53 of 1968.     Petition under Art. 32 of the Constitution of India  for enforcement of the fundamental rights. H.K. Shah, B. Datta and J.B. Dadachanji for the petitioners.     C.K. Daphtary, Attorney-General, R. Gopalakrishnan, R.H. Dhebar and S.P. Nayar, for the respondents.     HIDAYATULLAH, C.J., BACHAWAT and MITTER, JJ.,  delivered segarate  judgments  dismissing  the  petition.   SIKRI  and HEGDE,  JJ. delivered separate dissenting opinions  allowing the petition.     Hidayatullah,  C.J.   This petition has led to  a  sharp division of opinion among my ’brethren: Sikri and Hegde, JJ. would allow the petition and Bachawat and Mitter, JJ.  would dismiss  it. They have differed on the question whether  the petition deserves to be dismissed on the ground of delay.  I agree in the result reached by Bachawat and Mitter, JJ.  and would also dismiss if  I wish briefly to state my reasons.     At the threshold it appears to me that as  there is  no. law  which  prescribes  a  period  of  limitation  for  such petitions,  each of my brethren has really given  expression to  the practice he follows or intends to follow.  I can  do no more than state the views 1 830 hold on this subject and then give my decision on the merits of the petition in the light of those views.     The problem divides itself into two.  The first part  is a  general  question to be considered in  two  aspects:  (a) whether any limit of time at all can be imposed on petitions under  Art.  32, and (b) whether this Court would  apply  by analogy an article of the Indian Limitation Act  appropriate

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to the facts of the case or any other limit ?  The second is what is to be done in this case ?  I shall begin by  stating my views on the first question.     There  appears to be some confusion about the  scope  of Article  32.   That  Article gives the  fight  to  move  the Supreme Court by appropriate proceedings for enforcement  of the  rights conferred by Part III of the Constitution.   The provision merely keeps open the doors of this Court, in much the  same  way,  as it used to be said,  the  doors  of  the Chancery Court were always open.  The State cannot place any hindrance  in  the way  of an  aggrieved person  seeking  to approach  this  Court.   This is logical enough  for  it  is against  State action that Fundamental Rights  are  claimed. But  the guarantee goes no further at least on the terms  of Art. 32. Having reached this Court, the extent or manner  of interference  is for the Court to decide.  It is clear  that every  case does not merit interference.  That  must  always depend  upon the facts of the case.  In dealing  with  cases which  have come before it, this Court has ,already  settled many  principles  on which it acts.  A few of  them  may  be mentioned here.     This Court does not take action in cases covered’ by the ordinary jurisdiction  of the civil courts, that is to  say, it  does  not  convert  civil  and  criminal  actions   into proceedings for the obtainment of writs.  Although there  is no rule or provision of law to prohibit the exercise of  its extraordinary  jurisdiction this Court has  always  insisted upon  recourse  to ordinary remedies or  the  exhaustion  of other  remedies.   It is in rare cases, where  the  ordinary process of law appears to be inefficacious, that this  Court interferes  even where other remedies are  available.   This attitude arises from the acceptance of ’a salutary principle that  extraordinary  remedies should not take the  place  of ordinary remedies.     Then again this Court refrains from acting under Art. 32 if  the  party has already moved the High Court  under  Art. 226.  This  constitutes a comity between the  Supreme  Court and   the High Court.  Similarly, when a party  had  already moved  the  High Court with a similar complaint and for  the same  relief and failed, this Court insists on an appeal  to be brought before it and does not allow fresh proceedings to be  started.   In  this  connection  the  principle  of  res judicata  has  been  applied,  although  the  expression  is somewhat inapt and unfortunate.  The reason of the rule no 831 doubt   is  public.  policy   which  Coke   summarised    as "interest  reipublicae res judicates non rescindi"  but  the motivating  factor  is  the existence  of  another  parallel jurisdiction  in  another Court and that Court  having  been moved,  this Court insists on bringing its decision  ’before this  Court  for  review.  Again  this  Court  distinguishes between  cases in which a speaking order on merits has  been passed.   Where the order is not speaking or the matter  has been disposed of on some other ground at the threshold, this Court  in a suitable case entertains the application  before itself. Another restraint which this Court puts on itself is that  it does not allow a new ground to be taken in  appeal. In the same way, this Court has refrained from taking action when  a better remedy is to move the High Court  under  Art. 226  which can go into the controversy more  comprehensively than this Court  can  under Art. 32.     It  follows, therefore, that this Court puts  itself  in restraint  in the matter of petition under Art. 32 and  this practice has now become inveterate.  The question is whether this  Court  will inquire into belated and stale  claims  or

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take  note of evidence of neglect of one’s own rights for  a long time?  I am of opinion that not only it would but  also that it should.  The party claiming Fundamental Rights  must move the Court before other rights come into existence.  The action  of  courts  cannot harm innocent  parties  if  their rights  emerge by reason of delay on the part of the  person moving the Court. This principle is well-recognised and  has been applied by Courts in England ’and America.     The  English and American practice has been outlined  in Halsbury’s  Laws of England and Corpus Juris  Secundum.   It has  been mentioned by my brethren in their opinions  and  I need  not traverse the same ground again except to say  this that  Courts of Common Law in England were bound by the  Law of  Limitation but not the Courts of Chancery.  Even so  the Chancery  Courts  insisted  on  expedition.   It  is   trite learning to refer to the maxim "delay defeats equity" or the Latin of it that the Courts help those who .are vigilant and do  not slumber over their rights.  The Courts of  Chancery, therefore, frequently applied to suits in equity the analogy of  the law of Limitation applicable to actions at  law  and equally frequently put a special limitation of their own  if they  thought  that the suit was unduly  delayed.  This  was independently of the analogy of law relating to  limitation. The same practice has been followed in the United States.     In  India  we have the Limitation Act  which  prescribes different  periods  of limitation for  suits,  petitions  or applications.  There  are  also  residuary  articles   which prescribes limitation in those cases where no express period is provided.  If it were a matter of a suit or  application, either an appropriate article or the residuary article L6Sup.C.I./69--2 832 would  have applied. But a petition under Art. 32 is  not  a suit  and  it is also not a petition or  an  application  to which  the Limitation Act applies.  To put curbs in the  way of  enforcement  of Fundamental Rights  through  legislative action  might  well  be questioned under  Art.  13(2).   The reason is also quite clear.  If a short period of limitation were   prescribed  the  Fundamental  Right  might  well   be frustrated.   Prescribing  too long a  period  might  enable stale  claims  to be made to the detriment of  other  rights which might emerge.     If  then  there  is no period  prescribed  what  is  the standard  for  this  Court to follow ?  I  should  say  that utmost expedition is the sine qua non for such claims.   The party aggrieved must move the Court at the earliest possible time  and explain satisfactorily all semblance of delay.   I am  not indicating any period which may be regarded  as  the ultimate  limit  of  action for that would  be  taking  upon myself  legislative  functions.  In England a  period  of  6 months  has  been provided statutorily, but  that  could  be because there is no guaranteed remedy and the matter is  one entirely of discretion.  In India I will only say that  each case  will  have to be considered on its own  facts.   Where there  is  appearance  of avoidable  delay  and  this  delay affects the merits of the claim, this Court will consider it and  in a proper case hold the party disentitled  to  invoke the extraordinary jurisdiction.     Therefore,  the question is one of discretion  for  this Court to follow from case to case.  There is no lower  limit and  there is no upper limit.  A case may be brought  within Limitation  Act   by reason of some Article but  this  Court need not necessarily give the total time to the litigant  to move this Court under Art. 32.  Similarly in a suitable case this Court may entertain such a petition even after a  lapse

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of  time.   It  will all depend on what the  breach  of  the Fundamental  Right and the remedy claimed ,are and  how  the delay arose.     Applying these principles to the present case what do  I find ? The petitioner moved the High Court for relief on the ground  that the recovery from him was unconstitutional.  He set  out a number of grounds but did not set out the  ground on which ultimately in another case recovery was struck down by  this Court. That ground was that the provisions  of  the Act  were  unconstitutional.   The  question  is:  can   the petitioner  in this case take advantage, after a lapse of  a number  of years, of the decision of this Court ?  He  moved the High Court but did not come up in appeal to this  Court. His contention is that the ground on which his petition  was dismissed was different and the ground on which the  statute was  struck down was not within his knowledge and  therefore he did not know of it and pursue it in this Court.  To  that I answer that law will presume that he knew the exact ground of unconsti- 833 tutionality.  Everybody is presumed to know the law.  It was his  duty to have brought the matter before this  Court  for consideration. In any event, having set the machinery of law in  motion he cannot abandon it to resume it after a  number of years, because another person more adventurous than he in his turn got the statute declared unconstitutional, and  got a favorable decision.  If I were to hold otherwise, then the decision of the High Court in any case once adjudicated upon and  acquiesced it may be questioned in a  fresh  litigation revived  only with the ’argument, that the correct  position was  not  known  to  the petitioner  at  the  time  when  he abandoned his own litigation.  I ,agree with the opinion  of my  brethren  Bachawat  and Mitter, JJ.  that  there  is  no question  here of a mistake of law entitling the  petitioner to  invoke  analogy  of  the Article in the Limitation  Act. The  grounds  on which he moved the Court  might  well  have impressed this Court which might have also have decided  the question  of the unconstitutionality of the Act as was  done in  the subsequent litigation by another party. The  present petitioner  should have taken the right ground in  the  High Court  and taken it in appeal to this Court after  the  High Court  decided  against it.  Not having done so  and  having abandoned his own litigation years ago, I do not think  that this  Court should apply the analogy of the Article  in  the Limitation  Act and give him the relief now.  The  petition, therefore, fails and is dismissed with costs.     Sikri,  J.   I  have had the advantage  of  reading  the drafts  of  the  judgments  prepared  by  Mitter,  J.,   and Bachawat, J.  I agree with Mitter, J. in his conclusion that the  rule  laid  down   in Daryao v.  State  of  U.P.(1)  is inapplicable to the facts of the case, but for the reasons I will  presently give, in my opinion the petition  should  be allowed.     Art. 32(2) of the Constitution confers ’a judicial power on the Court.  Like all judicial powers, unless there is  an express  provision to the contrary, it must be exercised  in accordance with fundamental principles of administration  of justice.    General   principles  of   res   judicata   were accordingly  applied by this  Court  in Daryao v.  State  of U.P.(1), and Amalgamated Coalfields Ltd. v. Janapada  Sabha, Chindwara(2).   I  understand that one  of  the  fundamental principles of administration of justice is that, apart  from express provisions to the contrary, stale claims should  not be  given effect to  But what is a stale claim ?  It is  not denied  that  the Indian Limitation Act  does  not  directly

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apply  to a petition under Art. 32. Both the English  Courts and  the  American  Courts were confronted  with  a  similar problem.  In the United States the Federal Courts of  Equity solved the problem thus: (1)  [1962]  1 S.C.R. 574.            (2) A.I.R.  1964  S.C. 1013, 1018. 834                     "Except,  perhaps, where the-statute  by               its  express terms applies to suits in  equity               as  well  as to actions at law, or  where  the               jurisdiction of law and equity is  concurrent,               the  rule  appears to be that  Federal  courts               sitting  in  equity  are not  bound  by  state               statutes  of limitation. Nevertheless,  except               where  unusual  conditions  or   extraOrdinary               circumstances  render it equitable to  do  so,               the  Federal courts usually act in analogy  to               the state statutes of limitation applicable to               cases of  like  character." (Vol  34, American               Jurisprudence, Limitation of Actions, s 54.") In Courts of Admiralty, where the statutes of limitation  do not  control proceedings, the analogy of such   statutes  is ordinarily followed unless there is something exceptional in the case. (ibid) Story  on  Equity Jurisprudence states  the  legal  position thus:                     "It was, too, a most material ground, in               all bills for an account, to ascertain whether               they were brought to open and correct  ’errors               in  the account recenti facto; or whether  the               ’application  was made after a great lapse  of               time.  In cases of this sort, where the demand               was  strictly of a legal nature, or  might  be               cognizable  at law, courts of equity  governed               themselves  by  the  same  limitations  as  to               entertain  such  suits as were  prescribed  by               the’  Statute  of  Limitations  in  regard  to               suits  in courts of common law in  matters  of               account.    If,   therefore,   the    ordinary               limitation of such suits at law was six years,               courts of equity would follow the same  period               of limitation.  In so doing, they did not act,               in  cases of this sort (that is, in matter  of               concurrent  jurisdiction)  so  much  upon  the               ground    of  analogy   to  the   Statute   of               Limitations,  as  positively in  obedience  to               such statute. But where the demand was not  of               a  legal nature, but was purely equitable;  or               where the bar of the statute was inapplicable;               courts  of  equity had another  rule,  rounded               sometimes upon the analogies of the law, where               such  analogy existed, and sometimes upon  its               own inherent doctrine, not to entertain  stale               or  antiquated demands, and not  to  encourage               laches and negligence.  Hence,      in matters               of account, although not barred by the Statute               of  Limitations, courts of equity refused.  to               interfere after a considerable lapse of  time.               from  considerations        of public  policy,               from the difficulty of doing  entire  justice,               when,  the  original transactions  had  become               obscure  by time, and the evidence might  have               been lost, and from the consciousness that the               repose of’ titles and the security of property               are mainly promoted by a full en-

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             835               forcement  of  the  maxim,  Vigilantibus,  non               dormientibus jura subveniunt.  Under  peculiar               circumstances, however, excusing or justifying               the  delay, courts of equity would not  refuse               their aid in furtherance of the rights of  the               party;  since  in  such  cases  there  was  no               presence to insist upon laches or  negligence,               as a ground for dismissal of the  suit; and in               one  case  carried  back the  account  over  a               period of fifty years."  (Third Edition,  page               224, $529)     In England, as pointed out by Bachawat, J., the Court of Chancery acted on the analogy of Statute of Limitation (vide Halsbury, Vol. 14, p. 647, Art. 1190).     It seems to me, however, that the above solution is  not quite  appropriate for petitions under Art. 32.  A delay  of 12  years or 6 years would make a strange bed-fellow with  a direction  or  order  or writ in  the  nature  of  mandamus, certiorari  and  prohibition. Beating in mind the history of these  writs I cannot believe that the Constituent  Assembly had the intention that five Judges of this Court should  sit together to enforce a fundamental right at the instance of a person,  who  had without any reasonable  explanation  slept over  his  rights for 6 or 12 years.  The history  of  these writs  both in England and the U.S.A. convinces me that  the underlying  idea  of  the Constitution was  to  provide   an expeditious        and  authoritative  remedy  against   the inroads  of the State.       If a claim is barred under  the Limitation    Act,    unless    there     are    exceptional circumstances, prima facie it is a stale  claim  and  should not  be  entertained by this Court.  But even if it  is  not barred  under  the/radian  Limitation Act,  it  may  not  be entertained by this Court if on the facts of the case  there is unreasonable delay. For instance, if the State had  taken possession  of property under a law alleged to be void,  and if  a  petitioner  comes to this Court 11  years  after  the possession  was  taken  by the State, I  would  dismiss  the petition  on  the  ground of delay,  unless  there  is  some reasonable explanation. The fact that a suit for  possession of land would still be in time would not be relevant at all. It  is difficult to lay down a precise period  beyond  which delay  should be explained.  I favour one year because  this Court  should   not  be approached  lightly,  and  competent legal  ’advice should be taken and pros and  cons  carefully weighed before coming to this Court. It is common  knowledge that  appeals and representations to the higher  authorities take time; time spent in pursuing these remedies may not  be excluded under the Limitation Act, but it may ordinarily  be taken as a good explanation for the delay.     It  is said that if this was the practice the  guarantee of  Art.  32 would be destroyed.  But the article  no  where says that a petition, howsoever late, should be  entertained and a writ or order or 836 direction granted, howsoever remote the date of infringement of  the  fundamental right.  In practice this Court has  not been  entertaining  stale claims by persons who  have  slept over  their  rights. There is no need to  depart  from  this practice  ,and  tie our hands completely with  the  shackles imposed  by  the  Indian Limitation Act.   In  the  case  of applications under Art. 226 this Court observed in State  of Madhya Pradesh v. Bhailal Bhai(1):                       "It may however be stated as a general               rule that if there has been unreasonable delay

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             the Court ought not ordinarily to lend its aid               to  a  party by this extraordinary  remedy  of               mandamus.   Again, where even if there  is  no               such  delay  the Government or  the  statutory               authority   against  whom  the   consequential               relief  is  prayed for raises  a  prima  facie               triable issue as regards the  availability  of               such  relief  on the merits  on  grounds  like               limitation, the Court should ordinarily refuse               to  issue  the  writ  of  mandamus  for   such               payment.   In  both  these kinds of  cases  it               will  be sound use of discretion to leave  the               party to seek his remedy by the ordinary  mode               of  action in a civil court and to  refuse  to               exercise  in  his  favour  the   extraordinary               remedy under Art. 226 of the Constitution."                    In   State   of  Kerala   v..   Aluminium               Industries(2) Wanchoo, J., speaking on  behalf               of a large Bench of this Court, observed:                       "There  is  no doubt in  view  of  the               decision of this Court in Sales Tax Officer v.               Kanhaiyalal(3) that money paid under a mistake               of  law comes within  the  word  ’mistake’  in               section 72 of the Contract Act and there is no               question  of estopped when the mistake of  law               is  common to both the parties, which was  the               case  here inasmuch as the respondent did  not               raise the question relating to Article 286  of               the Constitution and the Sales Tax Officer had               no  occasion to consider it.  In such  a  case               where  tax is levied by mistake of law  it  is               ordinarily  the duty of the State  subject  to               any provision in the law     relating to sales               tax (and no such provision has been brought to               our  notice) to refund the tax.  If refund  is               not made, remedy through court is open subject               to  the  same  restrictions and  also  to  the               period  of limitation (see Article 96  of  the               Limitation  Act,  1908), namely,  three  years               from  the date when the mistake becomes  known               to  the  person who has made  the  payment  by               mistake  [see  State  of  Madhya  Pradesh   v.               Bhailal(1)]. In this view of the matter it was               the duty of the State to                (1) [1964] 6 S.C.R. 261,271-72.                (2) 16 S.T.C. 689, 692,                               (3) [1959] S.C.R. 1350.                    837               investigate  the  facts when the  mistake  was               brought to its notice and to make a refund  if               mistake  was  proved and the  claim  was  made               within the period of limitation." But  these  cases cannot directly apply to  petitions  under Art.  32  because  they proceed from the  premise  that  the remedy is discretionary under Art. 226.     Coming to the facts of this case, which have been stated in  detail by Mitter, J., it seems to me that the  delay  in coming  to  this Court has been  adequately  explained.   In brief,   the facts are these: The Sales Tax Officer, by  his order dated March 17, 1958, forfeited a sum of Rs. 26,563.50 under s. 21 (4) of the Bombay Sales Tax Act  (Bombay Act III of  1953), which  provision  is similar to s. 12A(4) of  the Bombay Sales Tax Act, 1946.  The petitioner promptly filed a writ  petition  in the Bombay High  Court  challenging  this order.  His petition was dismissed on November 28, 1958.  He

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also  failed in appeal before the Division Bench on July  7, 1959.   An  order of attachment  followed.   The  petitioner paid  the sum of Rs. 26,563.50 in various  instalments  from October 3, 1959, to August 8, 1960.  By letter dated January 9,  1962,  the petitioner was called upon to pay  a  penalty amounting  to  Rs. 12,517/68 on account of late  payment  of sales  tax  dues but this order of  penalty  was  ultimately cancelled.     The Gujarat High Court (Shelat, C.J., and Bhagwati,  J.) in Kantilal Babulal v.H.C. Patel, Sales Tax Officer(x)  held on December 2, 1963, that s. 12A(4) of the Bombay Sales  Tax Act,  1946, was valid and did not violate Art. 19(1) (f)  as it  was  saved by Art. 19(5). On September  29,  1967,  this Court, on appeal, in Kantilal Babulal v.H.C. Patel Sales Tax Officer(2)  struck down this provision as it infringed  Art. 19(1)(f).       On     February      9,      1968,      four petitioners--hereinafter  compendiously referred to  as  the petitioner   filed  this petition praying  that  the   order dated  March  17,  1958,  and the  notice  and  order  dated December 18, 1958, and December 24, 1958, be quashed.     There  is no doubt that under s. 72 of the Contract  Act the  petitioner would be entitled to the relief claimed  and the refund of the amount if he paid the money under  mistake of  law.  I find it difficult to appreciate why the  payment was  not  made under a mistake of law.  In  my  opinion  the petitioner  was  mistaken  in thinking that  the  money  was liable  to be refunded under a valid law.  Nobody has  urged before  us that the grounds which he had raised  before  the High Court were sound.     The petitioner had ’attempted to raise before the Bombay High Court the following grounds: (1) 16 S.T.C. 973.                       (2) 21 S.T.C. 174. 838                      1. Inasmuch as the sum of Rs. 26,563.50               was  paid by way of refund under  the   Bombay               Sales Tax Act 1946, the taxing authorities had               exceeded  their power under s. 21 (4)  of  the               Act  of  1953, in forfeiting the said  sum  of               money.                      2.  Assuming  that the  respondent  had               power  to  forreit the sum under  the  Act  of               1953,   it  was   strictly  limited  to  taxes               payable trader the provisions of the Act  .and               as  no  tax was payable on  outside  sale  the               authorities had no power to forfeit the sum of               Rs. 26,563.50.               3.                      4. Even assuming while denying that the               respondent had power to forfeit the sum of Rs.               26,563.50, the power to forfeit an amount   as               a  tax  presupposes a power to  impose  a  tax               and  inasmuch as on a proper  construction  of               the relevant provisions of the Constitution no               State  Legislature  had at any  time  a  power               to  impose tax on the aforesaid  transactions,               the  power to forfeit tax in respect of  those               transactions   is  ultra  vires    the   State               Legislature."               The learned Single Judge held:                      "This appears to me to be a gross  case               where  even if I was of the  opinion that  the               order  is  invalid and involved  violation  of               fundamental rights   would not in my discretion               interfere by way of issuing a writ.  I ’am not               depriving   the   petitioner  of   any   other

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             appropriate   remedy.   I   have,   therefore,               decided  to  dismiss  this  petition  on  that               single ground."     The  Division Bench, on appeal, decided on  the  limited ground  that  "Mr. Justice K.K. Desai having  exercised  his discretion  no  Case is made out for interference  with  the exercise  of that discretion."  The petitioner  rightly  did not  file  an  appeal to this Court for he  would  have  had little chance of succeeding.     Suppose a petitioner challenges a provision of the Sales Tax Act before the High Court on the ground that it does not fall within List II or List III of the Seventh Schedule.  He fails  and pays the tax and does not appeal to  the  Supreme Court.    Ultimately, in another petition, the provision  is struck  down under Art. 14 or Art. 19, a point which he  and his lawyers never thought of All assessees who had paid  tax without  challenging  the  provision would  be  entitled  to approach  this Court under Art. 32 and claim a  refund  (see Sales Tax Officer, Benaras v. Kanhaiya Lal Mukundlal  Saraf) (1).  But why not the assessee who applied to (1) [1959] S.C.R. 1350. 839 the High Court ?  The answer given is that he had thought at one time that the law was bad, though on wrong grounds.   If a  law were framed sanctioning the above  discrimination,  I believe, it would be difficult to sustain it under Art.  14, but  yet  this is the discrimination  which  the  respondent wants me to sanction.     The  grounds extracted above show that it  never  struck the petitioner that the provision could be challenged on the ground   ultimately   accepted  by  this  Court.    If   the petitioner   had   not thought of going to the  Bombay  High Court on the points he did, and had paid on demand, as  most of the assessees do, he would, I imagine, have been entitled to  maintain  this petition.  But it is now  said  that  the petitioner’s  position  is worse because  he  exercised  his right  to  approach  the High Court  under  Art.  226.   The contention  seems to be that when a petitioner approaches  a High  Court  and  fails, he can no longer  suffer  from  any mistake  of  law  even  if the point  on  which  this  Court ultimately  strikes down the provision, never struck him  or his lawyer or the Court.  I cannot uphold this contention.     In my opinion the petitioner was under a mistake of law, when  he paid up, the mistake being that he thought that  s. 12A  (4)  was  a valid provision in spite  of  its  imposing unreasonable  restrictions. This mistake he discovered  like ’all assessees when this Court struck down s. 12A(4) of  the Bombay Sales Tax Act.  He has come to this Court within  six months of that day and there is no delay.     The  petition  is accordingly allowed and  the  impugned order  dated  March  17, 1958, quashed  and  the  respondent directed  to  refund the amount.   Under  the  circumstances there will be no order as to costs.     Bachawat,  J.  I have had the advantage of  reading  the judgment prepared by G.K. Mitter, J.  For the reasons  given in  this judgment, 1. agree with the order proposed by  him. As  the  earlier petition filed in the High  Court  was  not dismissed on the merits, the present petition is not  barred by res judicata  or  principle analogous thereto.     The  petitioners  realised Rs. 26,563.50  P  from  their customers outside Bombay on account of sales tax.  The Sales Tax  Officer  by his order dated March 17,  1958   forfeited this  sum  under s. 21 (4) of the Bombay Sales Tax Act 3  of 1953.  On  March  28,  1958 the  petitioners  filed  a  writ petition’ in the  Bombay  High Court seeking to restrain the

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Sales Tax Officer from recovering the amount.  They  pleaded that they were not liable to pay the amount, that s. 21  (4) was  ultra vires the powers of  the  State  legislature  and that  the order of forfeiture was violative of  Arts.  19(1) (f)  and  265  of the Constitution  and  was   invalid.   On November  28, 1958, K.K. Desai, J.  dismissed the  petition. He held that the petitioners having defrauded other  persons were not 840 entitled  to  any relief.  The petitioners filed  an  appeal against  the  order.   In the  memorandum  of  appeal,  they pleaded  that  the threatened levy was in violation of Arts. 19(1)(f)  and  31  of  the  Constitution.   The  appeal  was dismissed on July 13, 1959.  In the meantime on December 24, 1958  the  Collector  of Bombay  attached  the  petitioners’ properties.   Between August 3, 1959 and August 8, 1960  the petitioners paid the sum of Rs. 26,563.50 P to the Collector of  Bombay.   In  Civil Appeal No.  126  of  1966,  Kantilal Bapulal  & Bros. v.H.C. Patel decided on September 29,  1967 this  Court struck down s. 12(A)(4) of the Bombay Sales  Tax Act, 1946 as unconstitutional and violative of Art. 19 ( 1 ) (f).  The arguments in the present ’appeal proceeded on  the assumption that s. 21 (4) of the Bombay Sales Tax Act,  1953 is liable to be struck down on the same ground. On  February 9,  1968  the petitioners filed the  present  writ  petition under  Art.  32 of the Constitution claiming refund  of  Rs. 26,563.50  P under s. 72  of  the Indian Contract Act  1872. They alleged that they paid this sum to the Collector  under coercion and/or mistake of law, and that they discovered the mistake on September 29, 1967.     Two points arise for decision in this writ petition:  (1 )  Would  the claim be barred by limitation if it  were  the subject-matter of a suit in February 1968 and (2) if so, are the  petitioners  entitled to any relief  in  this  petition under Art. 32 of the Constitution.     Subject to questions of limitation, waiver and estoppel, money paid under mistake or coercion may be recovered  under s. 72 of the Indian Contract Act.  The fight to relief under s.  72  extends to money paid under mistake  of  law,  i.e., "mistake  in  thinking that the money paid was due when,  in fact, it was not due." Shiva’ Prasad Singh v. Srish  Chandra Nandi ( 1 ),  Sates Tax Officer  v. Mukundlal Saraf(2).     In my opinion, the petitioners were’ not labouring under any mistake of law when they made the payments.  As early as March  1958 they filed a wait petition for  restraining  the levy under the order dated March 17, 1958 claiming that  the order was invalid and that s. 21 (4) of the Bombay Sales Tax Act, 1953 was ultra vires and unconstitutional.  They  might not have then known the precise ground upon which the  Court subsequently  struck  down a similar provision of  law,  but they   had  discovered  presumably under legal  advice  that they were not legally bound to make any payment.  After  the writ  petition was dismissed their properties were  attached and  they  made the payments  under  coercion  in  1959  and 1960.  The payments were not made under a mistake of law  or as  pointed  out in Shiva Prasad Singh’s  Case(1)   under  a mistake  in  thinking that the money was  due.  They  cannot claim any relief on the ground of mistake. (1)  [1949] L.R. 76 I.A. 244, 254.       (2)  [1959]  S.C.R. 1350, 1361, 1362. 841     As we are assuming in favour of the petitioners that  s. 21 (4) of the Bombay Sales Tax Act 1953 as invalid, we  must hold that they made the payments under coercion.  A suit for the  recovery  of  the money on this  ground  instituted  on

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January  1,  1964  would be governed by Article  24  of  the Limitation  Act, 1963 and the period of limitation would  be three  years from the dates in 1959 and 1960 when the  money was  received  by fife respondents. The  petitioners  cannot obtain  an  extension of fife period under s. 30(a)  of  the Limitation  Act,  1963 as Art. 62 of the  Indian  Limitation Act, 1908 prescribed fife same period of limitation.  A suit for  recovery of tax or other levy illegally  collected  was governed  by  Art. 62 and not by Art. 120, see  A1.  Venkata Subba Rao v. State    Andhra Pradesh(1).  Accordingly a suit for the recovery of money instituted in February 1968  would be barred by limitation.     If  the petitioners could claim relief on the ground  of mistake the suit would be governed by Art. 96 of fife Indian Limitation  Act, 1908 and time would begin to run  from  the date  when the mistake becomes known to the plaintiff.    In State of Madhya pradesh v. Bhailal Bhai & Ors.(2), and State of  Kerala v. Aluminium Industries Ltd.(3) it was held  that Art. 96 applied to a suit for recovery of money paid under a mistake  of  law.   Section 17(1)(c) of the  Limitation  Act 1963 now provides that in the case of a suit for relief from the consequences of a mistake the period of limitation  does not  begin  to run until the plaintiff  has  discovered  the mistake  or could with reasonable diligence have  discovered it.   Section  17(1)(c)  corresponds  to  s.  26(c)  of  the Limitation Act, 1939 (2 & 3 Geo. 6, c. 21).  It was held  in Re  Diplock(4) that sec. 26(c) applied by analogy to a  suit for recovery of money paid under mistake of law.  On appeal, the  House  of Lords said that the  section  presented  many problems  and  refrained from saying more   about  it,   see Ministry of Health v. Simpson(5).  In some American  States, it has been held that a mistake of law cannot be regarded as a  mistake  within a similar statute and time ran  from  the date of the accrual of the cause of action, see Corpus Juris Secundum,   vol.   54, Limitation of Actions,  Article  198, page 202, Morgan v. Jasper County(6), and the cases referred to  therein.  It is not necessary to pursue the  matter  any further as the petitioners cannot claim relief on the ground of   mistake.   Accordingly, I  express  no opinion  on  the scope  of  s.  17(c) of the Limitation Act,  1963,  For  the reasons already stated a suit for the recovery of the  money instituted in February 1968 would be barred by limitation. (1) [1965] 2 S.C.R. 577, 612-620.       (2) [1964] 6  S.C.R. 261, 274. (3) [1965] 16 S.T.C. 689, 692.          (4) [1948] Ch.  465, 515-516. (5)   [1951]  A.C.  251,277.                (6)   11  A.L.R. 634:274 N.W. 310. 842 The next and the more fundamental question is whether in the circumstances  the  Court  should  give  relief  in  a  writ petition  under Art. 32 of the Constitution.   No period  of limitation is prescribed for such a petition.  The right  to move  this  Court for enforcement of fundamental  rights  is guaranteed  by Art. 32.  The writ under Art. 32 issues as  a matter  of  course  if a breach of a  fundamental  right  is established.  Technical rules applicable  to  suits like the provisions  of s. 80 of the Code of Civil Procedure are  not -applicable  to a proceeding, under Art. 32. But  this  does not mean that in giving relief under Art. 32 the Court  must ignore   and  trample  under foot  all  laws  of  procedure, evidence, limitation, res judicata and the like.  Under Art. 145 (1 ) (c) rules may be framed for regulating the practice and procedure in proceedings under Art. 32.  In the  absence of  such  rules the Court may adopt any reasonable  rule  of

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procedure.   Thus  a petitioner has no right  to  move  this Court under Art. 32 for enforcement of his fundamental right on   ’a  petition  containing  misleading   and   inaccurate statements  and if he files such a petition the  Court  will dismiss  it,  see  W.P. No. 183 of 1966,  Indian  Sugar  and Refineries  Ltd.   v.  Union of India decided on  March  12, 1968.  On grounds of public policy  it would be  intolerable if  the Court were to entertain such a  petition.   Likewise the  Court held in Daryao v. The State of U.P.(1)  that  the general  principles  of  res  judicata  applied  to  a  writ petition   ’under  Art.  32.   Similarly,  this  Court   has summarily dismissed innumerable writ petitions on the ground that it was presented after unreasonable delay.     The  normal  remedy for recovery of money  paid  to  the State under coercion or mistake of law is by suit.  Articles 32 and 226 of the Constitution provide concurrent remedy  in respect of the same claim.  The extraordinary remedies under the Constitution are not intended to enable the claimant  to recover monies,  the recovery of which by suit is  barred by limitation.   Where  the remedy in a writ application  under Art.  32 or Art. 226 corresponds to a remedy in an  ordinary suit  and  the  latter remedy is subject to  the  bar  of  a statute  of limitation, the Court in its  writ  jurisdiction acts by analogy to the statue adopts the statute as its  own rule   of   procedure  and  in  the   absence   of   special circumstances  imposes the  same limitation on  the  summary remedy  in  the writ jurisdiction. ’On similar  grounds  the Court  of Chancery acted on the analogy of the  statutes  of limitation   in  disposing  of  stale  claims   though   the proceeding  in a Chancery was not subject to   any   express statutory bar, see Halsbury’s Laws of England, vol. 14, page 647, Art. 1190, Knox v. Gye(2). Likewise the High Court acts on the analogy of the statute of limitation in a  proceeding under  Art. 226 though the statute does not expressly  apply to  the proceeding. The Court will almost always  refuse  to give relief under Art. 226 if the [1962]  1 S.C.R. 574.                 C2) L.R. 5  H.L.  656, 674. 843 delay  is more than the statutory period of limitation,  see Stale of. Madhya Pradesh v. Bhailal Bhai(1).     Similarly this Court acts on the analogy of the  statute of  limitation  in respect of a claim under Art. 32  of  the Constitution  though  such claim is not the subject  of  any express  statutory  bar of limitation.  If the  right  to  a property is extinguished by prescription under s. 27 of  the Limitation Act, 1963 the petitioner has no subsisting  right which can be enforced under Art. 32 (see Sobhraj Odharmal v. Slate of Rajasthan(2).  In other cases where the remedy only and  not the right is extinguished by limitation, it  is  on grounds of public policy that the Court refuses to entertain stale claims under Art. 32.  The statutes of limitation  are rounded on sound principles of public policy. As observed in Whitley  Stoke’s Anglo-Indian Codes, Vol. 11 p.  ’940:  "The law is rounded on public policy, its aim being to secure the quiet  of the community, to suppress fraud and  perjury,  to quicken  diligence,  and  to prevent  oppression."   In  Her Highness   Ruckmaboye  v.   Lulloobhoy  Mottickchund(a)  the Privy  Council observed that the object of the  statutes  of limitation  was  to  give effect to  the  maxim,   "interest reipublicae ut sit finis litium" (Co Litt 303)--the interest of  the  State  requires that there should  be  a  limit  to litigation.   The rule of res judicata is rounded  upon  the same  rule of public policy, see Daryao v. State of  U.P.(4) at page 584.  The  other  ground of public policy upon which

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the  statutes of limitation are rounded is expressed in  the maxim "vigilantibus non dormientibus jura subveniunt" (2 Co. Inst.  690)--the  laws aid the vigilant and  not  those  who slumber.  On grounds of public  policy  the  Court’  applies the principles of res judicata to writ petitions under  Art. 32.   On like grounds the Court acts on the analogy  of  the statutes  of limitation in the exercise of its  jurisdiction under Art. 32.  It follows that the present petition must be dismissed.     Miller,  J.  The facts leading up to the filing  of  the petition under Art. 32 of the Constitution are as follows.     The   first  petitioner  before  us  is   a   registered partnership  firm  (hereinafter referred to as  ’the  firm’) carrying on business in Bombay and the other petitioners are partners  of the said firm.  The firm has been  carrying  on business  as  a dealer in and a trader of textiles  and  art silk  etc.  It  was registered as a  dealer  ’and  has  held registration  certificates under the various sales tax  laws prevailing  in  the  State  of  Bombay  from  1946   onwards including  the  Bombay Sales Tax Act 5 of 1946,  the  Bombay Sales  Tax Act 3 of 1953 and the Bombay Sales Tax Act 51  of 1959.     In  the course of assessment for the  assessment  period commencing on April 1, 1949 and ending on 31st October  1952 the [1964] S.C.R. 261. 273-74.         (2) [1963] Supp. 1 S.C.R. 99, 111.    [1851-52]  5 M.I.A., 234. 251.      (4) [1962]  1  S.C.R. 574. 844 firm contended that its sales of the value of Rs. 13,42,165- 15-6 were not liable to be taxed under the provisions of the Bombay  Sales  Tax  Act  then in force  as  the  goods  were delivered  as a direct result of such sales for purposes  of consumption  outside the State of Bombay.  The firm  claimed that it was entitled to a refund of the amount which it  had collected  from  its customers and paid on  account  of  the aforesaid sales at the time of submitting the returns of its turnover.   The  Sales  Tax  Officer  did  not  accept  this contention  but on appeal the Assistant Collector  of  Sales Tax upheld the firm’s contention after examining the details submitted  by it and found that sales involving the  sum  of Rs.  26,563-8-0 realised by way of tax were protected  under Art. 286 of the Constitution. He therefore directed that the said  sum be refunded to the firm on a  proper  application. This  appellate order was passed on November 7,  1956.   The firm  preferred an application  for refund of Rs.  26,563.50 on November 13, 1956 whereupon the Assistant Collector  (the appellate  authority)  simultaneously with the issue  of  ’a cheque for the above amount by way of refund wrote a  letter dated May 11, 1957 to the effect that the petitioner  should produce  before  him  within one month of the  date  of  the cheque  receipts totalling Rs. 26,563.50 from its  customers outside Bombay State to show that the refund had been passed on  to them. It appears that the petitioner did  not  fulfil this  condition  and a notice dated 28th  January  1958  was issued calling upon the firm to show cause why the said  sum of  Rs. 26,563.50 should not be forfeited under s. 21(4)  of the Bombay Sales Tax Act, 1953.  In reply thereto, the  firm stated  by  letter  dated  February  7,  1958  that  it  had collected from its customers outside the State of Bombay the said  sum of money and "under an honest mistake of  law  had paid  the same to the sales tax authorities." The firm  went on to add that the order for refund had been made only  when the  authorities were satisfied that ’it was not  liable  to

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pay  the  said  sum  but the  latter  had  insisted  upon  a condition  that the firm should in its turn refund the  said amount  to its customers from whom the collection  had  been made.  The letter records that the firm "had agreed to  that condition under coercion even though in ,law the authorities were  bound  to  refund the said ,amount  without  any  such condition."  Further the firm’s case in that letter was that the  authorities  had  "no  right  to  forfeit  any   amount collected  by a dealer under a mistake of law in respect  of these transactions" and the threat to forfeit the amount  on the  ground  that it had not been refunded  to  the   firm’s customers was without the authority of law.     The  order on the show cause notice passed on March  17, 1958  records  that though given sufficient  opportunity  to produce  stamped  receipts from its customers the  firm  had failed  to do so and had thereby contravened the  provisions of  s.  21(2)  of the Bombay Sales Tax Act.   The  firm  was directed to refund the said sum to 845 the  Reserve  Bank  of  India on or  before  April  1,  1958 failing  which  it would be recoverable as arrears  of  land revenue  from the firm together with penalty. The order  was purported  to be passed under s. 21 (4) of the Bombay  Sales Tax Act, 1953.      Within a few days thereafter i.e. on March 28, 1958 the firm  presented an application to the High Court of   Bombay under  Art. 226 of the Constitution for the issue of a  writ in  the  nature of certiorari quashing the  above  mentioned order   of  forfeiture  and  for  incidental  reliefs.    In paragraph 4 of the petition it was stated that the order  of forfeiture  was "without the authority of law and  therefore in  violating  of  Art.  19(1)(g)  and  Art.  265   of   the Constitution."       It  appears  that  a  similar  application  had   been presented on    behalf of Pasha Bhai Patel and Co. (P)  Ltd. to  the  Bombay High Court and the application of  the  firm along with the first mentioned application were disposed  of by  a  learned  single Judge of the  Bombay  High  Court  on November 28, 1958. The main judgment was delivered in  Pasha Bhai Patel and Company’s case. The learned Judge observed in the  course  of  his  judgment  that  there  was  no   merit whatsoever  in  it  and "justice did not  lie  in  his  (the petitioner’s) side and this was a matter in which the  court should  not interfere by way of a writ and  give  relief  to the   petitioner company."  The Judge further observed  that the petitioner has not referred to fundamental rights of any kind in the petition and said:                      "This appears to me to be a gross  case               where  even if I was of the opinion  that  the               order  is  invalid and involved  violation  of               fundamental   rights,  I  would  not   in   my               discretion interfere by way of issuing a writ.               I am not depriving the petitioner of any other               appropriate remedy.  I have therefore  decided               to  dismiss  this  petition  on  that   single               ground."      No  copy  of  the  petition in  Pasha  Bhai  Patel  and Company’s  case is before us but the present petitioner,  as shown  already, did complain of violation of  Art.  19(1)(g) and Art. 265 of the Constitution besides contending that the order  was  "ultra  vires,  bad  and  inoperative  in  law." Dealing with the petition of the firm the learned Judge said that "there was no merit in the case and justice did not lie on  the  side of the petitioner" and for  reasons  given  in Pasha Bhai Patel and Co.’s case the petition was dismissed.

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    The  firm went up in appeal to the same High Court.   A note  may be taken of some of the grounds in the  memorandum of appeal filed by the firm.  They were inter alia :--      "(13)  The  learned  Judge erred in  not  deciding  the petition  on  merits  even  when there  was  a  question  of violation of fundamental rights. 846     (16) The learned Judge erred in holding that this was  a gross  case where even if he had ’been of the  opinion  that the  order  was  invalid or that it  involved  violation  of fundamental   rights,   he  would  not  in  his   discretion interfere by way of issuing a writ.     (30)  The  learned Judge failed to appreciate  that  the order  of  forfeiture  was nothing but  the  deprivation  of property without the authority of law and the action of  the respondent   was   an  unreasonable   restriction   on   the fundamental rights of the petitioner under Art. 19(1)(f) and Art. 31 of the Constitution of India." In dismissing the appeal the learned Judges of the  Division Bench observed:                      "The  appellant claims to  retain  with               himself  amounts to which he has no claim  and               the  appellant is seeking to come before  this               Court  to retain with himself amount which  he               has obtained from the sales tax authorities on               a  representation that he is going  to  refund               the  same and which he has not refunded.   Mr.               Justice  K.K. Desai was of the view  that  the               claim made by the appellant was a gross  claim               and   even   if  it  involved   violation   of               fundamental   rights,  in  exercise   of   his               discretion, he will not interfere by issuing a               writ.  The learned Judge having exercised  his               discretion  which he undoubtedly was  entitled               to exercise, we do not think sitting in appeal               we would be justified in exercising our powers               as an  appellate court in interfering with the               order  under appeal.  We may observe  that  we               are  not dealing with this case on the  merits               at  all.  We have not considered the  question               whether  the  appellant is entitled in law  to               retain  the moneys which he has obtained  from               the  sales  tax department.  We  have  decided               this ’appeal  on  the  limited ground that Mr.               Justice   K.K.  Desai  having  exercised   his               discretion,  no  case  is  made  out  for  our               interference   with  the  exercise   of   that               discretion."     It  is  therefore amply clear from the  above  that  the learned JudGes of the Bombay High Court did not examine  the merits of the firm’s contention that the order of refund was without   the  authority  of  law  or  ultra’  vires  or  in violation of an}, fundamental rights of the partners of  the firm.   They  merely  exercised  their  discretion  on   the question  of  issue  of  a  writ  under  Art.  226  of   the Constitution  in view of the firm’s conduct in obtaining  an order  for  refund  of the amount  mentioned  and  later  on refusing to fulfil the condition imposed.     It does not appear that the firm took any further  steps in  the  court of law for vindicating  its  position  before filing the present 847 writ  petition.   It received a notice dated  December   18, 1958  under  the  Bombay City Land Revenue  Act  2  of  1876 calling upon it to pay the said sum of Rs. 26,563.50 to  the

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State of Bombay failing which proceedings were threatened to be taken by attachment and sale of its property and by other remedies  provided  by s. 13 of the Land  Revenue  Act.   It appears  that  the Collector of Bombay  actually  issued  an order of attachment on the right, title and’ interest of two of  the  partners  of the firm including  the  goodwill  and tenancy right in the premises where the business was carried on.   The  firm  paid the sum of Rs.  26,563.50  in  various instalments  beginning  on  October 3, 1959  and  ending  on August 8, 1960.     In paragraph 8 of the present petition to this Court  it is submitted that the petitioners "paid the sum to the State of  Bombay  under  coercion ’and/or  mistake  of  law."  The petitioners also state they "did not know that the  sections of  the Sales ,Tax Acts under which the said sum was  sought to be forfeited and/or recovered and/or retained were  ultra vires."   In paragraph 10 of the petition it is stated  that the  petitioners discovered their mistake in law  when  they came  to know of the decision of this Court dated  September 29,  1967  that s. 12A(4) of the Bombay Sales Tax Act  5  of 1946  was ultra vires.  In paragraph 14 of the petition  the firm also states:                     "that  the said sum had  been  forfeited               and/or   recovered  and/or  retained  by   the               respondents from the petitioners in  violation               of  Art. 265, Art. 31  and  Art. 19 ( 1 )  (f)               of  the Constitution.  The fundamental  rights               of  the petitioners have thus  been  violated.               The  petitioners  submit that they  have  been               deprived  of their property, to wit, the  said               sum, by the respondents without any  authority               in law and contrary to the fundamental  rights               guaranteed   to  the  petitioners   by   Arts.               19(1)(f) and 31 of the Constitution." The  grounds  of law under which the firm claimed  that  the action  of  the  State  of Bombay  and  the  respondents  in recovering, retaining, forfeiting and not returning the said sum were void and invalid in law are set forth in  paragraph 15 of the petition.  In the view which we take of the firm’s claim and in view of the decision of this Court in  Kantilal Babulal  and Bros.  v.  H.C. Patei(1) dated   September  29, 1967,  it  is not  necessary   to  examine the  validity  or otherwise of the provisions of s. 12A(4) of the Act of  1946 or the corresponding section of the Act of 1953 i.e.  s.  21 (4).   The  appeal  of Kantilal  Babulal  and  Bros.  v.H.C. Patei(1)  decided  by this Court on September 29,  1967  was from a decision of the High Court of Gujarat reported in  16 Sales Tax     (1) 21 S.T.C. 174. L6Sup.C.I./69-3 848 Cases  973.  The Gujarat High Court had held that s.  12A(4) was saved by Art, 19 (5) of the Constitution.  The appeal by the  assessee was allowed by this Court on the short  ground that  assuming that s. 12A(4) was a penal  provision  within the  legislative  competence  of  the  legislature,  it  was violative of Art. 19(1) (f)’ inasmuch as it did not lay down any  procedure for ascertaining whether in fact  the  dealer concerned  had collected any amount by way of tax  from  his purchasers  outside  the State ’and if so what  that  amount was.   It  was  further observed that the  section  did  not contemplate  any adjudication nor did it provide for  making any order and on a reasonable interpretation of the impugned provision.  it was observed "that the power conferred  under s.  12A(4) was unguided, uncanalised and uncontrolled."   On the above reasoning the Court held that the provisions in s.

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12A(4) were not a reasonable restriction on the  fundamental right  guaranteed under Art. 19 ( 1 ) within the meaning  of Art. 19 ( 5 ).     To  establish that the payments totalling Rs.  26,563.50 made in the years 1959 and 1960 were under a mistake of law, the  petitioners must satisfy the court that they  paid  the money  under a genuine belief  that the law allowed  it  but that  they  later discovered that they were under  no  legal obligation to pay.  Repayment of money paid under a  mistake is  provided  for  by  s. 72  of  the  Indian  Contract  Act occurring  in  Chapter V of the said Act  which  deals  with certain relations resembling those created by a contract. It reads:                     "A  person to whom money has been  paid,               or  anything  delivered, by mistake  or  under               coercion,  must repay or return "" It  was  laid down by the Judicial Committee  of  the  Privy Council  in  Sri  Sri  Shiba  Prasad  Singh,  deceased,  now represented by Kali Prasad Singha v. Maharaja Srish  Chandra Nandi(x) that:                     "Payment  ’by  mistake’ in  s.  72  must               refer  to a payment which was not legally  due               ,and which could not be enforced: the  mistake               is  thinking that the money paid was due  when               in fact it was not due." The  above decision of the Judicial Committee was relied  on by  this  Court  in  Sales Tax  Officer   v.   Kanhaiya  Lal Mukundlal Saraf(2) where it was said:                     "The Privy Council decision has set  the               whole  controversy at rest and if it  is  once               established  that the payment, even though  it               be  of  a  tax, has been  made  by  the  party               labouring under a mistake of law  the party is               entitled  to  recover the same and  the  party               receiving the (1)  76  I.A. 244, 254.           (2)  [1959]  S.C.R.  1350, 1363. 849               same  is  bound  to repay  or  return  it.  No               distinction  can therefore be made in  respect               of a tax liability and any other liability  on               a  plain  reading  of sec. 72 of the  Contract               Act  .........               In Mukundlal’s case(1) the respondent firm had               paid  sales  tax in  respect  of  its  forward               transactions  in pursuance of  the  assessment               orders passed by the Sales Tax Officer for the               years  1949 to 1951. The levy of sales tax  on               forward  transactions being held to  be  ultra               vires  by the High Court of Allahabad  by  its               judgment delivered on February 27, 1952 in the               case  of  Budh Prakash  Jai  Prakash  v.S.T.O.               Kanpur, the respondent by its letter dated 8th               July 1952 asked for a refund of the amount  of               sales  tax paid by it under assessment  orders               passed  on May 31, 1949, October 30, 1950  and               August 22, 1951. The Commissioner of Sales Tax               U.P. refused to refund the ,amount claimed  by               letter  dated   July   19,  1952.   The  above               judgment  of  the  Allahabad  High  Court  was               confirmed  by  this Court on May 3,  1954  see               Sales  Tax Officer, Pilibhit v.  Budh  Prakash               Jai  Prakash(2).    In   the   meanwhile   the               respondent  had filed a writ petition No.  355               of  1952  in the High Court for  quashing  the

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             ,assessment  orders  which was allowed  by  an               order  of  a single Judge  on   November   30,               1954.  The appellant’s Special Appeal from the               said order contending that money paid under  a               mistake   of  law  was   irrecoverable   being               dismissed, a further appeal was taken to  this               Court  under  a certificate. On the  facts  of               that case the Court held that both the               parties were labouring under a mistake of  law               the legal position as established later as  by               the  decision of the Allahabad High  Court  in               Budh Prakash Jai Prakash v. The S.T.O.  Kanpur               subsequently confirmed by this Court in S.T.O.               Pilibhit  v. Budh Prakash Jai Prakash(2 )  not               having  been  known  to  the  parties  at  the               relevant  time.  ’  This mistake  of  law  had               become apparent only on May 3, 1954 when  this               Court confirmed the decision of the  Allahabad               High  Court in Sales Tax Officer, Pilibhit  v.               Budh  Prakash  Jai  Prakash(2) observing:                      "on that position being established the               respondent became entitled to recover back the               said amounts which had been paid by mistake of               law. The state of mind of the respondent would               be the only thing relevant to consider in this               context  and once the  respondent  established               that  the  payments were made by  it  under  a               mistake  of  law   ....  it  was  entitled  to               recover  back the said amounts. and the  State               of U.P. was bound to repay or return the  same               to  the respondent irrespective of  any  other               consideration      ......     On    a     true               interpretation of s. 72 of the Indian Contract               Act the only two circumstances there indicated               as ’entitling the party to recover the  money (1)  [1959]S.C.R. 1350.                (2) [1955]  1  S.C.R. 243. 850 back  are that the moneys must have been paid by mistake  or under coercion." In State of Madhya pradesh v. Bhailal Bhai(1) this Court had to  deal with 31 appeals arising out of an equal  number  of applications  filed  before the Madhya  Pradesh  High  Court contending  that the taxing provisions under which  the  tax was assessed and collected from the petitioners  (the Madhya Pradesh   Sales   Tax  Act)  infringed  Art.  301   of   the Constitution  and did not come within the special  provision of Art. 304(a).  In all the petitions a prayer was made  for refund  of the taxes collected.  The High Court allowed  the prayer  for refund in 24 applications but rejected the  same in  the  other  applications.  This Court  agreed  with  the decision  of the High Court that the imposition of  the  tax contravened  the provisions of Art. 301 of the  Constitution and was not within the saving provisions of Art. 304(’a) and on  that  view observed that the payment was  made  under  a mistake  within s. 72 of the Indian Contract Act and so  the Government to whom the payment had been made must repay  it. The tax provisions under which these taxes had been assessed and  paid  were declared void by the High  Court  of  Madhya Pradesh   in  their  decision  in Mohammad Siddique  v.  The State of M.P. on 17th January, 1956.The respondeats  claimed to  have  discovered their mistake in  making  the  payments after they came to know of  these  decisions. Sixteen of the applications  out of 31 were made to the High  Court  within three  years from 17th January 1956 and the High Court  took

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the view that this was not an unreasonable delay and in that view ordered refund.  The High Court also ordered refund  in seven  other applications made more than three  years  eight months after the said 17th January 1956.     This Court although of opinion that the  High  Court had power  for the purpose of enforcement of fundamental  rights and  statutory  rights  to  give  consequential  relief   by ordering   repayment  of money realised  by  the  Government without the authority of law, observed:                     "At  the same time we cannot lose  sight               of the fact   that the special remedy provided               in Art. 226 is not in-    tended to  supersede               completely the modes of obtaining    relief by               an action in a civil court or to deny defenses               legitimately  open  in such actions.   It  has               been  made     clear more than once  that  the               power  to give relief under    Art. 226  is  a               discretionary   power.   This   is   specially               true  in the case of power to issue  writs  in               the nature    of mandamus.  Among the  several               matters which the    (Courts rightly take into               consideration  in  the  exercise  of      that               discretion is the delay made by the  aggrieved               party (1)[1964] 6 S.C.R 261 851               in seeking this special remedy and what excuse               there  is  for it.  Thus, where, as  in  these               cases, a person comes to the Court for  relief               under  Art. 226 on the allegation that he  has               been assessed to tax under a void  legislation               and having paid it under a mistake is entitled               to  get it back, the court, if it  finds  that               the  assessment was void, being made under   a               void  provision of law,  and the  payment  was               made  by  mistake,  is  still  not  bound   to               exercise  its discretion directing  repayment.               Whether  repayment  should be ordered  in  the               exercise  of  this discretion will  depend  in               each case on its own facts and  circumstances.               It is not easy nor is it desirable to lay down               any  rule  of universal application.   It  may               however  be stated as a general rule  that  if               there  has been unreasonable delay  the  court               ought  not  ordinarily to lend its  aid  to  a               party   by   this  extraordinary   remedy   of               mandamus.   Again, where even if there  is  no               such  delay  the Government or  the  statutory               authority   against  whom  the   consequential               relief  is  prayed for raises  a  prima  facie               triable  issue as regards the availability  of               such  relief  on the merits  on  grounds  like               limitation, the Court should ordinarily refuse               to  issue  the  writ  of  mandamus  for   such               payment. In both these kinds of cases it  will               be sound use of discretion to leave the  party               to  seek  his remedy by the ordinary  mode  of               action  in  a  civil court and  to  refuse  to               exercise  in  his  favour  the   extraordinary               remedy under Art. 226 of the Constitution."     In  State of Kerala v. Aluminium Industries Ltd.(1)  the respondents after submitting returns under the Sales Tax Act for the period May 30, 1950 to March 31, 1951 showing a  net turnover  exceeding  Rs. 23 lakhs and  depositing  necessary sales  tax  claimed  a  refund  on  the  ground  of   having

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discovered  their  mistake  soon after March  7,  1951.  The petition  to  the Kerala High Court under Art.  226  of  the Constitution  was opposed on behalf of the State on  various grounds. Holding that money paid under a mistake of law  was recoverable, this Court called for a finding from the  Sales Tax  Officer on the question whether the writ  petition  was within  three years of the date on which the  mistake  first became known to the respondent so that a suit for refund  on that  date would not be barred under Art. 96 of  the  Indian Limitation Act of 1908.    Speaking   for  myself  I  am  not  satisfied   that   the petitioners in this case had made a mistake in thinking that the  money  paid was due when in fact it was  not  due.   As already noted, in their reply to the show cause notice dated February  7, 1958 the petitioners ;case was that the  threat of the sales tax authorities to forfeit the amount  was without the authority of law and that  the  firm had (1) 16 S.T.C. 689. 852 agreed to the condition of refunding the amount received  to its  own  coustomers under coercion even though in  law  the authorities were bound to refund without any such condition. The  petitioners  did  not  content  themselves  merely   by opposing  the claim of the sales tax authorities to  forfeit the  amount  but  suited their action  to  their  belief  by presenting  a  writ  petition  to  the  Bombay  High   Court describing the order of forfeiture as without the  authority of law and in violation of Art. 19(1)(g) and Art. 265 of the Constitution  ’and praying for the necessary reliefs.   They did  not accept the decision of the learned single Judge  of :the  Bombay High Court under Art. 226 of  the  Constitution but  filed   their  appeal  raising  practically  the   same contentions as they have done in the present petition except that they did not state having discovered any mistake on  ’a perusal of the decision of any court of law. The grounds  of appeal to the Divisional Bench of the Bombay High Court  are illustrative  of  the  frame of mind and  viewpoint  of  the petitioners  then.  They complained about the  violation  of their fundamental rights, the illegality of  the  order   of forfeiture  and  in particular  mentioned  the  unreasonable restriction  on their fundamental rights enshrined  in  Art. 19(1)(f) of the Constitution.  Further, they had the benefit of the judgment of the appeal Bench of the Bombay High Court that the case was not being decided on the merits at all and even if there was any violation of the fundamental rights of the  petitioners the exercise of discretion by  the  learned single Judge would not be interfered with in appeal.     It was therefore clear to the petitioners that there was no adjudication as to their fundamental rights or the merits of  their  claim  and  there  was  nothing  to  prevent  the petitioners then from coming up to this Court by  preferring an  appeal from the judgment of the Bombay High Court or  by instituting   a  suit  for  declaration  of  the  order   of forfeiture  illegal  and ultra vires and for  an  injunction restraining  the State from giving effect  thereto.   Before the  Bombay  High  Court  the  petitioners  questioned   the legality of the order of forfeiture and prayed for  quashing it  on  the  ground  of the  threatened  invasion  of  their fundamental  rights.  On these facts it is idle  to  suggest that the petitioners ever entertained any belief or  thought that  the  money  was legally due from them.  The  way  they asserted   their  position  under  the  law  precludes   any inference that they were ever influenced by a mistake of law or that they ever failed to appreciate the correct  position

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under  the law. Even after the decision of the  Bombay  High Court they did not willingly pay up the amount forfeited but only made disbursements after an attachment had been  levied on  the business including the tenancy of the  premises  and its  good  will.   They  protested  against  the  order   of forfeiture not only out of court but in court and only  paid after the issue of a legal process. 853     It  is therefore not possible to hold that the  payments complained of following the order of forfeiture were made in mistake  of  law.  They were payments  under  compulsion  or coercion  A payment under coercion has to be treated in  the same way for the purposes of a claim to refund ’as a payment under mistake of law, but there is an important  distinction between  the  two.  A payment under mistake of  law  may  be questioned only when the mistake is discovered but a  person who  is under no misapprehension as to his legal rights  and complains about the illegality or the ultra vires nature  of the  order passed against him can immediately after  payment formulate  his  cause of action as one  of   payment   under coercion. The Limitation Acts do not in terms apply to claims  against the State in respect of violation of fundamental rights.   A person  ’,complaining of infraction of any such  rights  has one   of  three courses open to him.  He can either make  an application  under  Art. 226 of the Constitution to  a  High Court or he can make an application to this Court under Art. 32  of the Constitution, or he ’can file a suit  asking  for appropriate  reliefs.  The decisions of various High  Courts in  India  have firmly laid down that in the matter  of  the issue of ,a writ under Art. 226 the courts have a discretion and  may  in  suitable cases refuse to give  relief  to  the person  approaching  it  even  though  on  the  merits   the applicant  has a substantial complaint as regards  violation of fundamental rights, Although the Limitation Act does  not apply,  the courts have refused to give relief in  cases  of long or unreasonable delay. As noted above in Bhailal Bhai’s case(1),  it  was  observed  that  the "maximum period fixed by the legislature as the time within Which the relief by  a suit  in  a civil court must be brought  may  ordinarily  be taken to be a reasonable standard by which delay in  seeking remedy under Art. 226 can be measured."  On the question  of delay  we see no reason to hold that a different test  ought to be applied when a party comes to this Court under Art. 32 from one applicable to applications under Art. 226. There is a  public  policy  behind all  statutes  of  limitation  and according to Halsbury’s Laws of England (Third Edition, Vol. 24), Art. 330 at p. 181:                       "The  courts have expressed  at  least               three   different   reasons   supporting   the               existence  of statutes of limitation,  namely,               (1)  that  long dorment claims  have  more  of               cruelty  than  justice  in them,  (2)  that  a               defendant  might  have lost  the  evidence  to               disprove  a stale claim and (3)  that  persons               with good causes of action should pursue  them               with reasonable diligence."    In   my  view,  a  claim  based  on  the  infraction   of fundamental  rights  ought  not to be  entertained  if  made beyond the period fixed (1) [1964] 6 S.C.R. 261. 854 by  the Limitation Act for the enforcement of the  right  by way  of  suit.  While not holding that  the  Limitation  Act applies  in  terms.  I am of the view  that  ordinarily  the

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period  fixed by the Limitation Act should be taken to be  a true  measure  of  the time within which  a  person  can  be allowed  to raise a plea successfully under Art. 32  of  the Constitution.  Art. 16 of the Limitation Act of 1908 fixed a period of one year for a suit against Government to  recover money paid under protest in satisfaction of a claim made  by the revenue authorities on account of arrears of revenue  or on account of demands recoverable as such arrears, from  the date when the payment was made.  As an attachment was levied under  s. 13 of the Bombay City Land Revenue Act Ii of  1876 it  is  a moot question as to whether the payments  made  in 1959  and  1960  in this case would  not  attract  the  said article of the Limitation Act of 1908.  It was held by  this Court in  A.V. Subbarao  v.  The State(1) that the period of limitation for a suit to recover  taxes illegally  collected was  governed  by Article 62 of the Limitation Act  of  1908 providing  a space of three years from the date of  payment. But  taking  the most favourable view  of  the  petitioners’ case,  Art.  120,  of the Limitation Act of  1908  giving  a period of six years for the filing of a suit would apply  to the petitioners’ claim.  The period of six years would  have expired some time in 1966 but the Limitation Act of 1908 was repealed  by the Limitation Act of 1963 and by s.  30(a)  of the Act of 1963 it was provided that:               "Notwithstanding  anything contained  in  this               Act-                      (a)  any suit for which the  period  of               limitation  is  shorter  than  the  period  of               limitation prescribed by the Indian Limitation               Act,  1908, may be instituted within a  period               of  five years next after the commencement  of               this  Act or within the period prescribed  for               such suit by the Indian Limitation Act,  1908,               whichever period expires earlier:     A  claim for money paid under coercion would be  covered by  Art. 113 of the Limitation Act, 1963 giving a period  of three years from the first of January 1964 on which date the Act  came into force.  The period of limitation for  a  suit which  was formerly covered by Art. 120 of the Act  of  1908 would in a case like this be covered by Art. 113 of the  new Act and the suit in this case would have to be filed by  the 1st  January,  1967.   As the petition  to  this  Court  was presented in February 1968 a suit, if filed, would have been barred  and in my view the petitioners’ claim in  this  case cannot be entertained having been preferred after the 1st of (1) [1965] 2 S.C.R. 577. 855 January,  1967.   The facts negative any  claim  of  payment under a mistake of law and are only consistent with a  claim for money paid under coercion.  As the petitioners have come to  this  Court  long after the date when  they  could  have properly filed  a suit,  the application must be rejected.      I  may also note in brief another contention  urged  on behalf  of  the  respondents that the  present  petition  is barred  by  principles analogous to res  judicata.   It  was contended  by learned counsel for the respondents  that  the decisions of the Bombay High Court were speaking orders  and even  if  the  petition to the Bombay High  Court  had  been dismissed in limine there would be a decision on the merits. I  am  unable to uphold this contention.  It  was  ,held  in Daryao  and  others  v. The State of  U.P.(1)  that  when  a petition ’under Art. 226 is dismissed not on the merits  but because  of  laches on the party applying for  the  writ  or because   an  alternative ’remedy is available to him,  such dismissal is no bar to the subsequent petition under Art. 32

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except  in  cases where the facts rouged by the  High  Court might  themselves be relevant under under Art. 32.   It  was pointed out in Joseph v. State of Kerala(2) that:                       "Every citizen whose fundamental right               is  infringed by the State has  a  fundamental               right to approach this Court for enforcing his               right.  If by a final decision of a  competent               Court   his   title  to  property   has   been               negatived,  he ceases to have the  fundamental               right  in  respect     of that  property  and,               therefore,  he can no longer enforce  it.   In               that context the doctrine of res judicata  may               be  invoked.   But  where  there  is  no  such               decision at all, there is no scope to call  in               its aid."       The  judgment  of  the   Bombay  High  Court  in  1958 clearly shows that the merits of the petitioners’ claim were not  being examined.  I cannot however find no merit in  the contention   that  because  there  is  an  invasion   of   a fundamental right of a citizen he can be allowed to come  to this  Court, no matter how long after the infraction of  his right he applies for relief.  The Constitution is silent  on this point; nor is there any statute of limitation expressly applicable, but nevertheless, on grounds of public policy  I would  hold  that this Court should not lend its  aid  to  a litigant  even under Art. 32 of the Constitution in case  of an inordinate delay in asking for relief and the question of delay ought normally to be measured by the periods fixed for the institution of suits under the Limitation       The  petition  therefore fails and is  dismissed  with costs. (1)  [1962] 1 S.C.R. 574.             (2) A.I.R.  1965  S.C. 1514. 856     Hegde, J. I had the advantage of studying the  judgments just  delivered by my brothers Sikri, Bachawat  and  Mitter, JJ.   The  facts  of the case are fully  set  out  in  those judgments.  I shall not restate them.     I agree with the decision of Mitter J. that to the facts of this case the rule laid down by this Court in Daryao  and Ors.   v. The State of U.P. and Ors.(1)   is   inapplicable. The  principle underlying that decision as I understand,  is that  the right claimed by the petitioner therein  had  been negatived  by  a competent court and  that  decision  having become final, as it was  not  appealed against, he could not agitate  the  same over again.  It is in  that  context  the principle of res judicata was relied on. A fundamental right can be sought to be enforced by a person who possesses  that right.   If  a  competent court holds that he  has  no  such right,  that  decision  is  binding  on  him.   The  binding character  of judgments of courts of competent  jurisdiction is  in  essence  a  part  of  the  rule  of  law  on   which administration of justice depends.     In  view  of  the decision of  this  Court  in  Kantilal Babulal  and  Bros. v.H.C. Patel(2) that s.  12A(4)  of  the Bombay Sales Tax Act, 1946 is violative of Art. 19(1)(f)  of the  Constitution on the grounds that that section  did  not lay down any procedure for ascertaining  whether in fact the dealer concerned had collected any amount by way of tax from its purchasers outside the State and if so what that  amount was;  neither the section nor any rule framed under the  Act contemplated any enquiry much  less  a reasonable enquiry in which  the  dealer complained of could plead and  prove  his case or satisfy the authorities that their assumptions  were wholly or partly wrong and further the section also did  not

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provide for any enquiry on disputed questions of fact or law or  for  making  an  order, it  follows  that  the  impugned collection was without the authority of law and consequently the same is an exaction resulting in the infringement of one of  the proprietary rights of the petitioners guaranteed  to them  under Art. 19(1 )(f) of the Constitution.   Hence  the petitioners have a fundamental right to approach this  Court under Art. 32 of our Constitution for appropriate relief and this Court has a duty to afford them appropriate relief.  In Kharak  Singh  v. The State of UP  and  Ors.(a)   Rajagopala Ayyangar 1. speaking for the majority observed that once  it is  proved to the satisfaction of this Court that  by  State action  the  fundamental  right of  a  petitioner  has  been infringed  it  is not only the right but the  duty  of  this Court  under  Art.  32 to afford relief to  him  by  passing appropriate  orders in that behalf.  The right given to  the citizens  to  move  this Court under Art.  32  is  itself  a fundamental  right and the same cannot be  circumscribed  or curtailed  except as provided by the Constitution.   It   is in-    [1962] S.C.R. 574.                    (2) 21 S.T.C. 174.                    (3) [1964] 1 S.C.R. 332. 857 appropriate to equate the duty imposed on this Court to  the powers,  of the Chancery Court in England or  the  equitable jurisdiction of the American Courts.  A duty imposed by  the Constitution  cannot be compared with discretionary  powers. Under Art. 32. the mandate of the Constitution is clear  and unambiguous  and that mandate has to be obeyed.  It must  be remembered, as emphasized by several decisions of this Court that   this  Court  is charged by the Constitution with  the special  responsibility  of  protecting  and  enforcing  the fundamental rights under Part III of the Constitution.  If I may with respect, borrow the felicitous language employed by Chief  Justice  Patanjali Sastri in State of  Madras  v.V.G. Rao(1)  that as regards fundamental rights this’  Court  has been assigned the role of a Sentinel on the  qui  vive.  The anxiety of this Court  not to whittle down the amplitude  of the  fundamental rights guaranteed has found  expression  in several of its judgments.  It has not allowed its vision  to be blurred by the fact that some of the persons who  invoked its  powers had no equity in their favour.  It  always  took care to see that a bad case did not end in laying down a bad law.   I  am not unaware of the fact  that  the  petitioners before   us  have  no  equity  in  their  favour  but   that circumstance  is  irrelevant in deciding the nature  of  the fight available to an aggrieved party under Art.  32 of  the Constitution.     All  of  us  are  unanimous on  the  question  that  the impugned  collection  amounts to an invasion of one  of  the fundamental  rights  guaranteed to  the  petitioners.    Our difference  primarily  centres round  the  question  whether their  fight to get relief under Art. 32 is subject  to  any limitation or to be more accurate whether this Court has any discretion   while  exercising its jurisdiction  under  that Article  ?   As mentioned earlier a right to  approach  this Court under Art. 32 is itself a fundamental right.  In  that ’respect  our  Constitution makes a Welcome  departure  from many  other similar Constitutions.  As seen earlier a  party aggrieved  by  the infringement of any  of  its  fundamental rights has a right to get relief at the hands of this Court, and  this Court has a duty to grant appropriate relief   see Joseph  Pothen  v.  The  State  of  Kerala(2)’.   The  power conferred   on  this  Court  by  that   Article  is  not   a discretionary power. This power is not similar to the  power

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conferred  on  the  High  Courts  under  Art.  226  of   the Constitution,   Hence  laches on the part  of  an  aggrieved ’party  cannot deprive him of the right to get  relief  from this  Court under Art. 32.  A DiVision Bench of  the  Bombay High    Court  in   Kamalabai   Harjivandas  Parekh   v.T.B. Desai(3) held that where a constitutionals  to the  validity of a legislation is taken in a petition under Art. 226,  the question of  mere  delay  will not affect the (1) [1952] S.C.R. 597.                  (2) A.I.R. 1965 S.C. 1514.                    (3) [1965] Vol. 67 B.L.R.p. 85. 858 maintainability of that petition.  Law reports do not show a single  instance,  where  this Court had  refused  to  grant relief  to a petitioner in a petition under Art. 32  on  the ground of delay.     There has been some controversy  whether  an   aggrieved party  can  waive his fundamental right. That  question  was elaborately   considered   in   Basheshar   Nath   v.    The Commissioner  of Income Tax Delhi, Rajasthan and  anr.(1) by a   Constitution  Bench  consisting of S.R.  Das,  C.J.  and Bhagwati,  S.K.  Das,  J.L. Kapur and Subba  Rao,  JJ.   The learned Chief Justice and Kapur J. held that there could  be no  waiver  of  a  fundamental right founded  on  Art..  14. Bhagwati  and Subba Rao JJ. held that no  fundamental  right can  be  waived  and  S.K.  Das  J.  held  that  only   such fundamental  rights which are intended to the benefit  of  a party  can be waived.  I am mentioning all these aspects  to show  how  jealously  this Court has  been  resisting  every attempt  to narrow down the scope of the  rights  guaranteed under Part 111 of our Constitution.     Admittedly  the provisions contained in  the  Limitation Act  do not apply to proceedings under Art. 226 or Art.  32. The  Constitution makers wisely, if I may say with  respect, excluded the application of those provisions to  proceedings under  Art.  226,  227  and 32  lest  the  efficacy  of  the constitutional remedies should be left to the tender mercies of  the  legislatures.   This Court has laid  down  in  I.C. Golaknath  and ors. v. State of Punjab and anr.(2) that  the Parliament  cannot by amending the Constitution abridge  the fundamental   rights  conferred  under  Part  III   of   the Constitution.  If  we  are to bring  in  the  provisions  of Limitation  Act  by   an indirect  process  to  control  the remedies  conferred by the Constitution it would  mean  that what the Parliament cannot do directly it can do  indirectly by curtailing the period of limitation for suits against the Government.   We  may console ourselves by saying  that  the provisions  of the Limitation Act will have only  persuasive value but they do not limit the power of this Court but  the reality  is bound to be otherwise.  Very soon the line  that demarcates the rule of prudence and binding rule is bound to vanish as has happened in the past.  The fear that forgotten claims  and  discarded rights may be sought to  be  enforced against  the  Government  after  lapse  of  years,  if   the fundamental  rights are held to be enforceable without  ’any time  limit appears to be an exaggerated one. It is for  the party  who  complains  the  infringement  of  any  right  to establish  his right. As years roll on his task is bound  to become  more  and  more difficult. He can  enforce  only  an existing  right.  A  right may be lost  due  to  an  earlier decision  of  a  competent court or  due  to  various  other reasons.  If  a right is lost for one reason  or  the  other there  is  no  right to be enforced. In  this  case  we  are dealing with an existing right even if it can be  said  that the  petitioners’

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(1)  [1959]  Supp. 1 S.C.R. 528.              (2)  [1967]  2 S.C.R. 762. 859 remedy  under the ordinary law is barred.  If the   decision of  Bachawat and Mitter, JJ. is correct,  startling  results are  likely to follow.  Let us take for example a Case of  a person  who is convicted and sentenced to a long  period  of imprisonment  on  the  basis of ,a statute  which  had  been repealed long before the  alleged offence was committed.  He comes  to know of the repeal of the statute long  after  the period  prescribed for filing. appeal expires. Under such  a circumstance  according  to  the decision  of  Bachawat  and Mitter,  JJ.  he will have no right-the  discretion  of  the Court apart-to move this Court for a writ of habeas corpus.     Our Constitution  makers in their wisdom thought that no fetters should be placed on the right of an aggrieved  party to seek relief from this Court under Art. 32.  A  comparison of  the language of Art. 226 with that of Art. 32 will  show that while under Art. 226 a discretionary power is conferred on  the  High  Courts the mandate  of  the  Constitution  is absolute so far as the exercise of this Court’s power  under Art.  32  is concerned.  Should this Court,  an  institution primarily  created  for  the  purpose  of  safeguarding  the fundamental   rights  guaranteed  under  Part  III  of   the Constitution,  narrow down those rights ?  The  implications of this decision are bound to be far reaching.  It is likely to  pull  down from the high pedestal now  occupied  by  the fundamental fights to the level of other civil rights.  I am apprehensive  that  this  decision  may  mark  an  important turning  point  in down grading the     fundamental   rights guaranteed  under the Constitution.  I am    firmly  of  the view  that  a  relief  asked for under  Art.  32  cannot  be refused  on  the  ground of laches. The  provisions  of  the Limitation     Act  have  no relevance  either  directly  or indirectly  to proceedings   under Art. 32.   Considerations which  are  relevant  in proceedings   under  Art.  226  are wholly  out of place in a proceeding like the  one    before us.  The decision of this Court referred to in the  judgment of  Bachawat and Mitter JJ. where this Court has taken  into consideration the laches on the part of the petitioners  are not apposite   for our present purpose.  None of those cases deal  with proceed  under Art. 32 of the Constitution-   The rule enunciated by this court in the State of M.P.v. Bhailal Bhai(1) is only applicable   to proceedings under Art.  226. At  page 271 of the report Das Gupta, 1. who spoke  for  the Court specifically referred to this aspect when he says:      "that it has been made clear more than once that  power to relief under Art. 226 is a discretionary power".  Therefore  those  decisions are of no assistance to  us  in deciding  the present case.  Once it is held that the  power of this Court under Art. 32 is a discretionary power-that in nay  opinion is the result of the decision of  Bachawat  and Mitter JJ-then it follows that this Court can refuse  relief under Art 32 on any one of the [1964] 6 S.C.R. 261. 860 grounds on which relief under Art. 226 can be refused.  Such a  conclusion militates not only against the plain words  of Art.  32  but  also  the  lofty  principle  underlying  that provision.   The  resulting  position  is  that  the   right guaranteed   under  that  Article  would  cease  to   be   a fundamental right. Assuming that the rule enunciated by this Court in Sales Tax Officer  v.  Kanhaiya  Lal Mukundlal  Saraf(1)  and  further refined by this Court in State of M.P.v. Bhailal Bhai(") can

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apply  to the facts of this case even then I am  of  opinion that  the petitioners are entitled to the relief  that  they have  asked  for.  As could be gathered from the decision of Bachawat  and  Mitter, JJ., the Bombay High  Court  did  not decide the merits of the case in the writ petition filed  by the  petitioners.  In that  petition  the Court  refused  to exercise  its discretion in favour of the  petitioners.  The grounds on which the petitioners challenged the validity  of s. 12A(4) of the Bombay Sales Tax Act, 1946 before the  High Court  of Bombay have now been found to be unsustainable  by the  Gujarat High Court in Kantilal Babulal and  Bros.  v.H. C. Patel(3).  In the appeal against that decision this Court did not examine those grounds.  It struck down s. 12A(4)  on a  wholly different ground, a ground not put forward by  the petitioners  in their writ petition before the  Bombay  High Court.  A mere impression of a party that a provision of law may  be ultra vires the Constitution can not be equated’  to knowledge that the provision is invalid. Hope and desire are not  the  same  things  as knowledge.  A  law  passed  by  a competent  legislature is bound to be presumed to  be  valid until it is struck down by a competent court.  The fact that after  a  futile attempt to get the  provision  in  question declared  invalid  the petitioners gave up their  right  and submitted to the law which was apparently valid is no  proof of  the fact that they knew that the provision in   question is invalid.  As  seen earlier that none of the grounds urged by  the petitioners in support of their contention that  the provision  in question is invalid has been accepted  by  any court  till  now.   Under  these  circumstances  I  see   no justification  to  reject the plea of the  petitioners  that they  became aware of the invalidity of the provision   only after  the  decision  of this Court  in  Kantilal  Babulal’s case(4) which decision was rendered on September 29,   1967. This   petition was filed very soon thereafter.  Hence  this case  under  any circumstance falls  within  the  rule  laid down by this  Court  in Bhailal Bhai’s case(2). For the reasons mentioned above I allow this petition and grant the relief prayed for by the petitioners.                               ORDER In accordance with the opinion of the majority, the petition fails  and is dismissed with costs. V.P.S.    [1959]   S.C.R.  1350.                                (2) [1964]  6 S.C.R. 261. (3)  16 S.T.C. 973.                                  (4)  21 S.T.C. 174. 861